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None of the five are currently charged with war crimes; neither are any cleared for release.

Zahir’s name was included in a list of war crimes trial candidates drawn up by the Department of Defense late last year that surfaced recently in legal documents.

Detainees who are not cleared for release, and not convicted of any crimes, get to argue their case for release in front of a parole-style board, said a Pentagon spokesman, Army Lt. Col. Myles B. Caggins III, on Monday.

“These are law of war detainees held in safe, humane conditions under the auspices of the Authorization of Use for Military Force,” he added, referring to war powers conferred on President George W. Bush after the 9/11 attacks and being reconsidered by the current Congress and Obama.

A Yemeni detainee, Mukhtar Yahya al Wrafi, about 35, is pursuing a similar argument in a federal court filing through his lawyer, David Remes. Remes describes his client as a medic at the time of his capture in Afghanistan who was profiled as “more likely than not, part of the Taliban.”

Unlike the five Afghans, Wrafi has been cleared for conditional release but is from violence plagued Yemen, where the Obama administration won’t send cleared captives.

“What makes his case special, and especially compelling,” Remes said by email, “is that the government is holding him solely for being part of the Taliban. He was serving as a medic. So there’s no complicating issue of whether the war against al-Qaida is over.”

Wrafi’s attorneys filed the pleading last month. No hearing date has been set.